Friday, 30 June 2017

"Sorry, we can't help you": AG Wahl to referring court in Case C-598/15 on mortgage enforcement procedure

This case is one of the latest in a string of cases relating to Spanish mortgage enforcement procedure (see previously e.g. Aziz, Sánchez Morcillo and, more recently, Banco Primus). In preliminary references to the CJEU, Spanish courts have been questioning the compatibility of their national legislation with, in particular, Directive 93/13/EEC on unfair terms in consumer contracts. The present case, Banco Santander v. Sánchez López (C-598/15), concerns the extrajudicial enforcement of a mortgage before a notary, followed by a simplified procedure in order to evict the consumer-debtor from her home. There were several potential problems from the perspective of effective consumer protection, including:
- a clause in the mortgage agreement allowing for extrajudicial enforcement and empowering the bank to represent the mortgage debtor at the signature of the public deed of sale;
- the fact that the immovable property had been sold (to the bank, or so it appears) for only 59.7% of the attributed value, leaving the debtor with a significant debt;
- the fact that the public deed of sale, transferring the property, was drawn up without the participation of the debtor;
- the absence of judicial control, except in the simplified procedure for eviction when review of the terms of the mortgage agreement was no longer possible.

The procedural regime at issue enables the bank to swiftly enforce the mortgage, while the referring court seems to have had doubts whether the rights of consumers are sufficiently protected in light of the Directive.

AG Wahl: "I am perplexed"...
Yesterday, Advocate General Wahl presented his Opinion. He observes that he is "perplexed by the wording of the referred questions" (para. 35). His answer to these questions can be summarised as: "sorry, we can't help you". In his view, the present case must be distinguished from previous cases on the basis that, in short, this case is not - or rather: no longer - about the enforcement of a mortgage agreement. Instead, it concerns a property right ("right in rem"), which is not based on a contract but on the extrajudicial recognition of that right. The transfer of the property had already taken place; the contract supposedly containing an unfair term was extinguished, together with the mortgage itself. Therefore, Directive 93/13/EEC is not applicable.

A 'Catch-22'?
The purpose of the simplified procedure brought before the referring court is to recognise and give effect to a property right entered in the land register. The court could only verify the bank's property right with a view to the exercise of that right, resulting in eviction of the debtor. This presents the referring court with a 'Catch-22': the term alleged to be unfair is the very term which ultimately led to the contract and the mortgage being extinguished. Thus, the mortgage agreement between the consumer-debtor and the bank does no longer exist and its terms cannot be assessed by the court.

If the referring court can neither assess the mortgage agreement nor - according to AG Wahl - question the procedural regime at issue, then who can? Probably not the notary, who is not a "court of tribunal" that can make a preliminary reference to the CJEU (cf. Margarit Panicello regarding the position of the Secretario Judicial). The notary can apparently warn consumers of the existence of unfair terms or give them an opportunity to lodge a claim in separate legal proceedings (see question 4 of the referring court). In ERSTE Bank Hungary, the CJEU has deemed it sufficient that consumers were able to bring the matter before a court that could then provide interim relief. In the present case, the consumer could also oppose the enforcement or seek a suspension (Opinion of AG Wahl, para. 70). However, one could question whether this is indeed an effective remedy, because it places the burden entirely on the consumer (cf. the Opinion of AG Kokott in Margarit Panicello). Thus, there is a risk that the matter never comes before a court at all, until it is "too late".

The relevant question here is whether the interpretation of EU law that is sought by the referring court "bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer" (Aziz, para. 35). Unlike Mr. Aziz, Ms. Sánchez López had had - technically speaking - the opportunity to contest the terms in the mortgage agreement. The referring court lacked jurisdiction to determine the unfairness of those terms. However, the problem seems to be that cases like this might never come before a court, exactly because the existence of a term allowing for extrajudicial enforcement and the transfer of property in the absence of the consumer-debtor.

In the interest of the consumer...?
Later on in his Opinion, AG Wahl draws attention to some circumstances of the case that possibly explain the "inertia" on the part of Ms. Sánchez López herself. The bank allowed her to remain on the premises as a tenant. It would not necessarily be in her interest to challenge the definitive transfer of the property right. In the words of AG Wahl, "effective consumer protection includes the option not to exercise consumer rights" (para. 80). It might be true that invalidity of the mortgage agreement and annulment of the property transfer would endanger the social tenancy agreement subsequently concluded between the bank and Ms. Sánchez López. But was Ms. Sánchez López, who still owes a significant residual debt to the bank (as far as we know), actually aware of her rights? Has she ever appeared before the notary at all? Is the whole course of events and the current arrangement truly in her interest? Such an argument is less convincing. In this respect, it is telling that AG Wahl also refers to the principle of legal certainty and the security of acquired property rights (para. 77), where the conclusion that the case does not fall within the scope of Directive 93/13/EEC would have sufficed. This, as well as his earlier astonishment at the referred questions, suggests that AG Wahl does not really see any problem with the procedural regime at issue, even if the Directive would be applicable. 

Thursday, 29 June 2017

Can CJEU interpret UCPD in relation to a B2B practice? Bold opinion of Advocate-General in C-295/16

Earlier today the Advocate-General Saugmandsgaard Øe delivered a very interesting (if not to say contestable) opinion in case C-295/16 Europamur Alimentación. At first sight the case deals with a rather unoriginal question: can national legislation establish a general prohibition on certain commercial practices irrespective of the black list laid down in the Annex I of Directive 2005/29/EC (hereinafter UCPD). Nevertheless, the importance of the case goes well beyond the actual questions referred.

Background of the case

The contested Spanish provision, set out in the Law 7/1996 regulating retail commerce, provided that "selling or offering to sell to the public at a loss shall be prohibited" unless two exceptional circumstances occur. The act did not seem to clarify if the said prohibition referred to B2B transactions only, or to B2C sales alike. What was clear from a further part of the provision, however, was that it also applied "to entities engaging in wholesaling, whatever their legal nature". 

If the law applied to a B2C transaction, there would be no doubts about its non-compliance with the UCPD (see AG's opinion in paras. 53-65 supported by the earlier case law of the CJEU: C-304/08 Plus WarenhandelsgesellschaftC-540/08 Mediaprint Zeitungs- und ZeitschriftenverlagC-288/10 Wamo and, particularly, C-343/12 Euronics Belgium). What made the commented case stand out was the character of the underlying dispute: it did not relate to direct consumer sales, but rather to sales by a wholesaler, Europamur, to a number of small retailers, who were themselves reselling household and food products to consumers. This, reportedly, allowed small retailers to compete against superstores and large distribution chains. Based on the applicable Spanish law the Europamur was nevertheless fined EUR 3 001 on account of having sold certain products marketed by it at a loss thus infringing the interests of competitors and consumers. The question appeared: can the CJEU interpret UCPD in relation to a business-to-business practice like the one at hand? 

Admissibility of the request

Not surprisingly, the main part of the opinion concerned the admissibility of the request for a preliminary ruling. Doubts stemmed from the fact that consumer protection was one of the objectives pursued by the national provisions applicable to the main proceedings. This was clear from the preamble of the contested measure, national case law and administrative provisions according to which the amount of the fine was to be set. As mentioned above, if applied to a business-to-consumer transaction, the provision would certainly have fallen within the scope of the UCPD. However, as seen among others from recital 6, Article 2(d) and Article 3(1) of the directive, as well as existing case law of the CJEU and the updated Guidance document (though not cited by the AG), the scope of that directive does not extend to commercial practices which relate to a business-to-business transaction. This well-established reading of the directive was reasserted by the Advocate-General in para. 42 of the opinion. So far so good.

The Advocate-General nevertheless went on to argue that the request should be admissible. Critical from this point of view is paragraph 43 of the opinion which reads as follows:

"43. However, according to settled case-law, the Court may find that it has jurisdiction to answer questions referred to it for a preliminary ruling even if the provisions of EU law in respect of which an interpretation is sought do not apply to the facts in the main proceedings, where those provisions have been directly and unconditionally rendered applicable by domestic law. Where, in regulating situations outside the scope of the EU measure concerned, national legislation seeks to adopt the same solutions as those adopted in that measure, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions taken from that measure should be interpreted uniformly. Accordingly, the Court is required to ascertain whether there are sufficiently precise indications to enable that reference to EU law to be established, in the light of the information provided in that regard in the request for a preliminary ruling". 

This may be true, yet the ensuing interpretation of the relevant domestic legislation carried out by the AG failed to convince me that the concept cited above (perhaps arguable in itself) should be applied to the case at hand. In particular, the Advocate-General inferred, despite the assertions of the Spanish government to the contrary, that the fact that contested national provisions were not amended by the subsequent Spanish act implementing Directive 2005/29/EC was a "conscious decision" aimed to transpose that directive into the domestic legal order. This conclusion was reached irrespective of the fact that, in the said transposition process, amendments to a different national act prohibiting sales at a loss, Law 3/1991 on unfair competition, were introduced. Ironically enough, the AG even went as far as to say that, in his view, transposition of the UCPD in the contested Law on retail commerce, in consequence of which provisions of the Directive were supposedly rendered applicable to situations which did not fall within its scope, occurred "mistakenly" (para. 45). As a result, the Advocate-General concluded that provisions of the UCPD "were, at least in part, reproduced in the relevant rules of Spanish law" and "should be given a uniform interpretation by the Court, in order to forestall possible differences of interpretation in that regard and given that the reply to the questions referred seems to be decisive for the resolution of the dispute in the main proceedings" (para. 51). The request should therefore, in his view, be admissible. As to the proposed ruling on the substance the AG concluded, unsurprisingly, that UCPD should be interpreted as precluding national legislation such as that at issue in the main proceedings.

Concluding remark

The Advocate-General Saugmandsgaard Øe certainly deserves credit for not shying away from bolder interpretations. After all, this is what protects the European case law from the dangers of path dependence. However, the stakes in the case at hand are particularly high - following the advice of the AG could be seen as a serious encroachment of the Luxembourg court on the competence of national legislator. It remains to be seen if the CJEU follows the proposed line of reasoning or rather goes against its advisor as it has already done before (see e.g. our earlier comment on case C-119/15 Biuro podróży Partner). One thing is certain: case C-295/16 Europamur Alimentación is definitely worth following. 

Call for papers in Netherlands Journal of Consumer Law

Special Issue – Netherlands Journal of Consumer Law 
Consumer Law and the Impact of Behavioral Science 
Deadline (new): 06-10-2017
The Netherlands Journal of Consumer Law (Tijdschrift voor Consumentenrecht – TvC) cordially invites you to submit papers for a Special Issue in 2017 on the role of behavioral science in consumer law. Research from domains such as criminology, economics, language studies, neurology, political science and psychology has provided invaluable insights into the behavior of business and consumers. Concepts such as ‘biases’, ‘heuristics’ and ‘nudge’ appear highly important in determining regulatory and policy choices for the field of consumer law. Yet, do behavioral sciences influence consumer law? To what extent do we see behavioral insights underpin current consumer law? What kinds of insights does ‘behaviorism’ offer for the application of consumer law in general of for courts and regulatory authorities more particularly? How do lawmakers use these insights in (re)designing consumer laws, if at all? Should this be any different, taking into account the benefits and drawbacks of these analyses for the legal discipline?
The TvC editorial board welcomes papers for the Special Issue that answer these and related questions. Authors may present original empirical results, as well as review articles providing a critical perspective on the state of the art concerning the influence of behavioral science in various subdomains of consumer law, from conflict resolution to financial services and from standard terms regulation to unfair commercial practices. Accordingly the Special Issue will offer the TvC readership a broad overview of the state of the art on this topic. Submitted papers will follow the TvC peer review procedure. In addition to scientific excellence, the basic parameters for publication are:
- Papers should concern the interplay between consumer law and behavioral science and provide an overview of recent behavioral insights that (could) influence consumer law, its design or application. Original empirical evidence to support this is more certainly welcomed, but is not a requirement for publication. 
- Papers should keep to a maximum of 4.000 words; 
- Papers should include an abstract of a maximum of 150 words and 5 relevant keywords.

Papers for the Special Issue can be submitted to the editorial assistant, Mr. Jurgen Braspenning ( The deadline for submission is Friday, October 6, 2017. Please direct your queries to the editorial assistant.
About TvC 
TvC is a leading peer-reviewed academic journal, focusing on consumer law and policy in the Netherlands and Europe. For more information on its themes, editorial board and readership, please visit the TvC website.

Wednesday, 28 June 2017

Follow-up reading on W and Others in Nature

Further comments and considerations on the W and Others judgment may be found in the just published article "Vaccine ruling from Europe's highest court isn't as crazy as scientists think", authored by Laura Castells & Declan Butler for Nature. Following our blog post ("If scientists quarrel..."), we have provided comments to the authors, and some of them have been included in the article.

Monday, 26 June 2017

"Transparency: where art thou in consumer protection?" - workshop

A final reminder that tomorrow a workshop "Transparency: where art thou in consumer protection?" will take place at the University of Exeter, building LAVER LT3. The workshop is organised by Joasia Luzak, director of the Centre for European Legal Studies at the University of Exeter.

The programme is as follows:
10:00-10:45 - E. Terryn (KU Leuven): "Transparency in the UCTD: time for reform?"
10:45-11:00 - coffee/tea break
11:00-11:45 - A.-L. Sibony (UC Louvain): "Transparency in commercial practices"
11:45-12:30 - A. Harcourt (University of Exeter): "Media transparency in Europe"
12:30-14:00 - buffet lunch
14:00-14:45 - Ch. Docksey (EDPS): "Transparency online under the new GDPR rules"
14:45-15:30 - A. Wulf (SRH Hochschule Berlin): "Analysing transparency in information obligations from a multidisciplinary empirical perspective"
15:30-16:15 - K. Noussia (University of Exeter): "Transparency in consumer insurance contracts"

Friday, 23 June 2017

If scientists quarrel whether a vaccine caused a disease, it's left to the courts - CJEU in W and Others (C-621/15)

On June 21 the CJEU decided in the case of product liability related to a potentially defective vaccine - W and Others (C-621/15). Mr W was vaccinated against hepatitis B in the years 1998-1999 with a vaccine produced by Sanofi Pasteur. He was diagnosed with MS in November 2000, which first led to his disability from work, then needing round-the-clock care, and finally his death in October 2011. Together with his three family members he raised a claim against Sanofi Pasteur in 2006, arguing that his illness resulted from the administration of the vaccination.

Vaccinations have long been a controversial topic as the available medical research has not been able to either conclusively prove their detrimental effects to human health or to conclusively disprove them. This is at least confirmed in this case with respect to the lack of medical research establishing a relationship or lack thereof between the hepatitis B vaccination and the multiple sclerosis disease (par. 30). Article 4 of the Product Liability Directive requires the consumer to be able to prove not only the damage, and its cause but also the causal link between the two. What evidence was submitted in this case? Mr W and Others claimed that the short period between the vaccination and the appearance of first symptoms of MS should be considered, as well as the fact that there was no trace of family history of this disease. These facts "are such as to give rise to serious, specific and consistent presumptions as to the existence of a defect in the vaccine and as to there being a causal link between the injection of the vaccine and the occurrence of the multiple sclerosis." (par. 11) 

In French law, which was applicable to this case, the Cour de cassation stated previously that with regard to the defective vaccines and the liability of pharmaceutical companies for their production, the causal link could be derived from "serious, specific and consistent presumptions". So even if the medical research does not confirm a relationship between the vaccination and the occurrence of the disease, the court could establish the defect in the vaccine and the causal link between it and the damage based on, indeed, the lack of medical family history with this disease and the short time that passed between the vaccination and the occurrence of the disease (par. 13). I think it bears repeating: despite the lack of medical research evidencing this relationship.

Considering that the PLD does not specify what should be considered a sufficient proof of the causal link between the defect and the damage that the consumer needs to establish, it is left to the Member States to decide what evidence is admissible, the level of proof required and the rules for national courts how to evaluate it (par. 25). The established procedural rules should comply with the principle of effectiveness, of course (par. 26), which cannot lead, e.g., to the shift in the burden of proof pursuant to Article 4 PLD or undermine the effectiveness of the strict liability system adopted by this Directive (par. 27). The CJEU confirms that the French procedural rules do not lead to such a shift in the burden of proof but rather just alleviate it by making it easier for consumers to establish the causal link - without having to "produce, in all circumstances, certain and irrefutable evidence of a defect in the product and of a causal link between the defect and the damage suffered" (par. 28). The national court may then conclude that "such a defect has been proven to exist, on the basis of a set of evidence the seriousness, specificity and consistency of which allows it to consider, with a sufficiently high degree of probability, that such a conclusion corresponds to the reality of the situation." (par. 28). Furthermore, the possibility to ban the use of circumstantial methods in proving the causal link would be contrary to the PLD, esp. in situations like here: where the medical research is inconclusive (par. 30), as it would disallow consumers' successful claims of product liability due to excessively difficult burden of proof (par. 31). 

Generally then, the CJEU accepts a possibility that national law establishes producers' liability only on the basis of circumstantial evidence. However, it continues to observe that procedural rules may not harm producers by accepting "unjustified presumptions" (par. 34). When would this occur? For example, if national courts are overly rigorous in their application of these evidentiary rules and start accepting irrelevant or insufficient evidence, as a consequence (par. 35). The CJEU goes even further, if national court would draw an automatic presumption on the existence of the defect and of causal link, just because "one or more types of factual evidence were presented together" - this would lead to the disregard of the burden of proof as "the producer could then find itself, even before the courts ruling on the merits of the case had the opportunity to familiarise themselves with the producer’s evidence and arguments, in the position of having to rebut that presumption in order to defend itself successfully against the claim" (par. 36). Therefore, the producer's right to defense needs to be respected.

Concluding, the national court may use circumstantial evidence - if it is sufficiently serious, specific and consistent - to conclude that despite the producer's arguments and evidence presented by him "a defect in the product appears to be the most plausible explanation for the occurrence of the damage, with the result that the defect and the causal link may reasonably be considered to be established." (par. 37).

The CJEU actually addresses the facts of this particular case in the par. 41-42 of the judgment. It seems to advise the national court that in the given case it could be likely to establish a defect and causal link, considering the lack of medical family history of the disease, temporal proximity between the vaccination and the occurrence of the disease, but also the existence of a significant number of reported cases of the disease following such vaccines being administered. This could make it the most plausible explanation for the national court that the administration of the vaccine led to the disease and that the vaccine, therefore, did not offer the safety it should have. But such conclusions have to be drawn "in a fully enlightened manner in each specific case" - the producer's rebuttal being the most important evidence to the contrary.

I think this judgment may lead to quite some disputes. On the one hand, supporters of medical research may feel that the lack of conclusive evidence of the harmful effects of the vaccination should not lead to producers' liability. On the other hand, considering the difficulties consumers would have in acquiring conclusive proof based on medical research, that's contrary, of the harmful effects of the vaccine, the alleviation of the burden of proof might seem reasonable to others.

Thursday, 15 June 2017

Mediation may be mandatory but should be free to withdraw from and of lawyers - CJEU in Menini and Rampanelli (C-75/16)

Yesterday the CJEU issued also the first judgment on the new ADR Directive in the case of Menini and Rampanelli (C-75/16). We have previously commented on the AG Saugmandsgaard Øe's opinion (First case on new ADR Directive...) and the CJEU agreed with the AG's assessment that the new ADR Directive does not preclude Italy to prescribe mandatory mediation procedure, as long as parties retain the right to access the judicial system. The "voluntary nature of the mediation lies, therefore, not in the freedom of the parties to choose whether or not to use that process but in the fact that 'the parties are themselves in charge of the process and may organise it as they wish and terminate it at any time'" (par. 50). The right to access the judicial system would be guaranteed if e.g. the outcome of the ADR procedure is not binding on the parties and if the limitation periods do not expire during such a procedure (par. 56). However, as currently the Italian mediation procedure requires consumers to use legal services (which is contrary to Art. 8(b) of ADR Directive, see par. 64) and does not allow them to withdraw from the mediation process unless they demonstrate the existence of a valid reason for such a withdrawal, these features of the mediation procedure are in breach of the ADR Directive. The latter function makes ADR procedure binding to an extent (see par. 57 and 67 on the necessity of free withdrawal from the ADR procedure at any stage).

The CJEU in providing this answer left a lot of questions posed by the national court unanswered. It left it to the national court to determine whether "an application to have an order for payment set aside and an application for a stay of provision enforcement associated with that measure constitute a complaint by a consumer, of an independent nature in relation to the order for payment proceedings instituted by a trader working in credit..." (par. 42). The ADR Directive applies only if the ADR procedure has been initiated by the consumer.

CJEU in TofuTown: if it doesn't come from a cow, it can't be milk

Soy milk, soy cream, soy cheese: all these names come forward relatively frequently on European markets. According to a decision issued by the the CJEU yesterday (C-422/16, BSV v GMBH), however, all these products are currently being marketed under names that do not meet the requirements of EU law. To understand why, let us take a step back. 

In the main proceedings, a German association had sued a company producing vegetarian and vegan foodstuff claiming that it infringed German rules on unfair competition by not respecting EU food regulations. 

In particular, the company traded several vegetal products using names mainly associated with dairy products, such as "cream", "milk", and so on. The usage of these terms, however, is restricted under EU law, namely Regulation 1308/2013, to "normal mammary secretion obtained from one or more milkings" - in other words, animal products. In turn, names which designate dairy products - such as cream, butter, cheese - are in principle only to be used for products based on animal milk. A very limited set of exceptions, listing names of products traditionally using milk-related names in the Member States, is adopted by means of Commission decision 791/2010. This lists features products such as "coconut milk", "horse-radish cream" and other country-specific words - with separate sections for each language.

The defendant company, however, claimed that allowing a broader understanding of the exception, which would allow the use of diary-related words for soy and other vegetable products, would be in line with the objectives of the Regulation. According to this argument, 

"the way in which consumers understand those designations has changed massively in recent years, and that it does not use terms such as ‘butter’ or ‘cream’ in isolation, but always in association with words referring to the plant-based origin of the products concerned, for example ‘Tofu butter’ or ‘Rice Spray Cream" (para 17).

The CJEU did not really engage with the submission, rather reasoning on whether an interpretation that would not allow such a reading would itself go against the Regulation's purposes. According to the court, it would not. 

"As is clear from recitals 64 and 76 of that regulation, the objectives pursued by the provisions at issue consist, in particular, in improving the economic conditions for the production and marketing as well as the quality of such products. The application of such standards is therefore in the interest of producers, traders and consumers, to protect consumers and to maintain conditions for allowing competition. Those provisions, in so far as they provide that only the products which comply with the requirements they lay down can be designated by the term ‘milk’ and the designations reserved exclusively for milk products even if those designations are expanded upon by explanations or descriptions such as those at issue in the main proceedings, contribute to the attainment of those objectives." (para 43)

The limitations, according to the court, are necessary for a proper identification of actual milk-based products. Without such limits, both consumers and producers of milk would be harmed. The contextual use of "clarifying or descriptive terms indicating the plant origin of the product at issue" is not sufficient to circumvent the restrictive rules of the Regulation (see also para 31).

In essence, the CJEU saw no reason to investigate whether in the case at stake a risk of confusion existed, either by using an "average consumer" test or otherwise. The Court simply considered itself bound by the list detailed in the Commission's decision of 2010, especially in light of the fact that the Commission would be able to revise such decision with relatively minor troubles.

The Court also briefly considered whether major complaints could be raised against the Regulation under the principles of proportionality and equal treatment. As to proportionality, the analysis remarked that the EU legislator enjoys wide discretion in matters of agricultural markets regulation, due to the broad mandate it enjoys under the Treaty.  Concerning equal treatment, and in particular the different approach to producers of non-dairy replacements for animal products (eg veggie burgers), the Court observed that different sectors show different concerns and thus equal-treatment here cannot be invoked to require different situations to be treated equally.

Producers in several member states will now likely have to change their labelling and marketing practices, and/or massively lobby the Commission for amendments to its 2010 decision.

Tuesday, 13 June 2017

General nutrition and health principles for reduction of sugar consumption - CJEU in Dextro Energy (C-296/16 P)

In anticipation of more directly consumer law-related judgments of the CJEU (tomorrow the judgment will be given in the first case pertaining to the ADR Directive), it might be interesting to bring our readers' attention to the judgment of 8th of June in the Dextro Energy case (C-296/16 P). The CJEU dismissed the appeal against the General Court's judgment, upholding its decision. The case pertained to nutrition and health claims.

Dextro Enegry is a producer of various products made mostly of glucose, which are sold on the German and European markets. In 2011 it requested authorisation of various health claims, such as "glucose contributes to normal energy-yielding metabolism" or "glucose contributes to normal muscle function". Pursuant to Regulation No 1924/2006 health claims need to be authorised and included on the list of authorised health claims before they can be used by producers. In 2015 the Commission refused, however, to authorise these health claims as they were seen to convey "a contradictory and ambiguous message to consumers, as they encouraged the consumption of sugar, whereas national and international authorities recommended a reduction in sugar intake, on the basis of generally accepted scientific advice." (The Court confirms that a number of health claims relating to glucose cannot be authorised) The Commission's opinion was not changed in case the health claims would be used only under specific conditions or accompanied by additional warnings. Dextro Energy relied on the positive opinion of the European Food Safety Authority (EFSA) stating that there is a causal link between the consumption of glucose and normal energy-yielding metabolism. Despite the Commission not questioning the EFSA's opinion, the General Court refused to authorise these health claims, considering that other relevant and legitimate factors might have led the Commission to its decision.

The interesting finding of this case is the General Court's recognition of generally accepted nutrition and health principles, pursuant to which average consumers must reduce their sugar consumption (par. 58). Such principles stand in this case in the way of authorising the use of nutrition and health claims that even if accurate may endanger consumer health.